Monday, August 25, 2020

Missouri Supreme Court approves collaborative law as ethically permissible form of practice of law

The Missouri Supreme Court has issued a formal opinion laying to rest any doubts about whether it is ethical for Missouri lawyers to offer collaborative legal services to their clients. The Missouri opinion is in the mainstream of state ethics opinions, the overwhelming majority of which have given thumbs up to collaborative legal practice. In August 2007, the ABA ethics committee added a strong voice to the growing chorus of approval.

Here is the full text of the Missouri opinion:

Advisory Committee of the Supreme Court of Missouri
Formal Opinion 124

COLLABORATIVE LAW

The question is whether it is ethically permissible for Missouri
attorneys to engage in "collaborative law" practice. For purposes of
this opinion, "collaborative law" will be a process by which both
parties agree that they will seek to settle their dispute and, if
they are unable to do so, each will get new counsel to litigate the
case.

The agreement can take many forms. For example, it can be drafted in
such a way that the parties can obtain judicial enforcement or it can
be legally unenforceable. From an ethics perspective, it does not
matter whether the agreement is enforceable between the parties. The
ethical concerns focus on the agreement and communication between the
attorney and the attorney's client.

Ethically, the primary concern is whether the client has given
informed consent as defined by Rule 4-1.0(e). A collaborative law
process is a type of limited scope representation. The attorney must
clearly and thoroughly inform the client how the process works. The
attorney must explain the pros and cons of the process and provide a
clear, thorough explanation of the alternatives. Under Rule 4-1.2,
the client must sign a written consent.

The agreement between the attorney and client may provide that the
attorney will withdraw if settlement fails. This may create a
tension between the client's interests and the attorney's interests.
The attorney may not want to withdraw, but the attorney must not put
his or her interests above the client's interests, as determined by
the client. If the client determines that settlement has failed, the
attorney may not try to persuade the client to continue to pursue a
settlement or to accept a settlement, unless the attorney objectively
believes it is in the client's best interest. The attorney's desire
to remain in the case cannot be a factor.

This potential tension does not make the collaborative law process
unethical. Similar tensions exist in many other attorney-client
relationships. The most obvious example is the potential tension
between the attorney and client in a contingent fee case. The client
may wish to accept a settlement far less than the attorney considers
advisable. If the attorney's assessment is correct, accepting such a
settlement will result in a much smaller fee for the attorney.
Similarly, a client may be unwilling to accept a settlement that the
attorney considers advisable because of the attorney's doubts about
the likelihood of success at trial. We allow contingent fees because
we are willing to rely on attorneys to follow their ethical
obligations of putting their clients' interests ahead of their
personal interests. We are only using contingent fees as an example
of a similar situation where the attorney must be relied upon to put
the client's interests first. Contingent fees are not permissible in
most domestic relations matters. Rule 4-1.4(d)(1).

The potential that individual attorneys may violate the duty of
loyalty, from time to time, does not make the practice generally
unethical, as long it is reasonable to believe that the vast majority
of attorneys will fulfill their ethical obligations. In the context
of collaborative law, the tension between the interests is not
unreasonable. The practice of collaborative law is considered
ethical in Missouri.

If an attorney practicing collaborative law finds him or herself in
an actual conflict situation, relating to this or any other issue,
that attorney must withdraw or, if permissible, obtain conflict
waivers consistent with the conflict rules found within Supreme Court
Rule 4. If the attorney's personal interests create a situation that
materially limits the attorney's representation to the extent that
the attorney will no longer be able to provide competent and diligent
representation, an unwaivable conflict exists and the attorney must
withdraw.

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